It is by now widely understood that water is critical for the development of energy resources, including the production of natural gas in "unconventional plays" like the Haynesville Shale Play in northwest Louisiana. Recently, much attention has been given to the use of water with respect to hydraulic fracture stimulation technology (commonly known as "fracing"), a technique in which water, sand, and other additives are pumped under high pressure into underground formations in order to create fractures that allow natural gas to flow to a wellbore for collection. Estimates indicate that three to six million gallons of water are required to "frac" a Haynesville Shale gas well. Given the magnitude of current and future operations in the Haynesville Shale area and the quantity of water that will be required for such "fracing," the Louisiana Department of Natural Resources (DNR) has undertaken several measures over the past year and a half with respect to the sources of water to be used when utilizing this production technique, including:

Issuing a Groundwater Advisory recommending that ground water used in "fracing" in the Haynesville Shale area come from the Red River Alluvial Aquifer rather than the lower yield Carrizo-Wilcox Aquifer that provides domestic and public water supply in many rural areas of Northwest Louisiana (October 16, 2008);

imposing a requirement that operators engaging in "fracing" report the water source and volume utilized with respect to each well (September 15, 2009); and

imposing a requirement that domestic water well users provide notice to the Office of Conservation at least sixty days prior to utilizing groundwater for a non-domestic purpose, including (but not limited to) "fracing" (November 9, 2009).

Early reports indicate that gas producers in the Haynesville Shale have been working diligently and effectively to reduce the amount of groundwater used in their "fracing" operations by making use of alternative water sources, including lakes, rivers, and private ponds. Now, thanks to a new rule promulgated by the DNR effective November 20, 2009, they have one more arrow in their quiver—recycled waste water from exploration and production operations. This new rule, which appears in LAC 43:XIX.311 and 313, allows for the "Temporary Use of E and P Waste" for hydraulic fracturing in the Haynesville Shale area alone, subject to several conditions: (1) the waste water can only be used by the same operator of record; (2) the waste water can only be used to complete "fracing" of a single well before being disposed of; (3) all waste generated in the processing of waste water to create "fracing" fluid must be properly disposed of; and (4) the owner of the surface on which the receiving well site is located must file an "affidavit of no objection." In adopting the rule, the DNR stated its belief that the rule "uses sound waste minimization principles along with conservative waste management requirements to promote groundwater resource management while protecting public health and the environment."